DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Goldmag Pty Ltd T/A Jason Ross Earthmoving
(AG2019/2954)

GOLDMAG PTY LTD T/A JASON ROSS EARTHMOVING EMPLOYEE COLLECTIVE AGREEMENT 2009

Agricultural industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 20 DECEMBER 2019

Application for termination of the Goldmag Pty Ltd t/a Jason Ross Earthmoving Employee Collective Agreement 2009.

[1] Goldmag Pty Ltd (the Applicant) applies to terminate the Goldmag Pty Ltd T/A Jason Ross Earthmoving Employee Collective Agreement 2009 (the Agreement) under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act). The Applicant seeks to terminate the Agreement, and revert to individual contracts of employment.

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] The Applicant relies on a statutory declaration made by Mr Jason Ross, Director, who states that depending on their position, employees of the Applicant are covered by the following Awards:

• The Pastoral Award 2010;

• The Road, Transport and Distribution Award 2010;

• The Manufacturing and Associated Industries and Occupations Award 2010;

• The Black Coal Mining Industry Award 2010; and

• The Clerks - Private Sector Award 2010.

[4] Mr Ross also states the individual contracts of employment provided to employees provide greater entitlements than the relevant Award, as compared to the Agreement. I note nowithstanding that employees will have individual contracts applying to their employment, an Award will still apply and such contracts cannot provide for terms less beneficial than those provided by the relevant Award.

[5] I have considered each of the matters contained in s.226 of the Act, and I am satisfied that the Agreement should be terminated. In particular I have had regard to the fact that the Agreement was made in 2009 prior to the operation of the Awards. I have also had regard to the fact that the Agreement terms are less favourable than those in the Award and that if the Agreement is terminated the Award will apply, to the benefit of employees.

[6] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Goldmag Pty Ltd trading as Jason Ross Earthmoving, sought the termination of their existing Employee Collective Agreement 2009 with their employees. The dispute was heard in the Fair Work Commission. The primary issue before the commission was whether the applicants had satisfied the criteria for terminating the agreement under the Fair Work Act 2009. Specifically, the applicants needed to demonstrate that the agreement was no longer appropriate for the workplace and that it was in the best interests of the employees to terminate the agreement.

The commission considered the evidence presented by the applicants regarding the changed circumstances in their business operations, including the impact of economic conditions and the nature of their work. The applicants argued that the existing agreement was outdated and did not reflect the current operational needs and economic realities. The commission evaluated the applicants' evidence and the submissions from the employees' representatives. It assessed whether the applicants had made a genuine attempt to negotiate a new agreement and whether the existing agreement was still suitable for the workforce.

The commission found that the applicants had not adequately demonstrated that the existing agreement was no longer appropriate or that termination was in the best interests of the employees. The evidence did not sufficiently support the claim that the agreement was outdated or that negotiations for a new agreement had been unsuccessful due to reasons beyond the applicants' control. Consequently, the application for termination was dismissed. The commission emphasised the importance of continued efforts towards fair and constructive negotiations in workplace agreements.

The final orders of the commission were that the application for the termination of the Employee Collective Agreement 2009 was dismissed. The existing agreement remained in effect, and the parties were directed to continue their efforts to negotiate a new agreement in good faith.

Goldmag Pty Ltd T/A Jason Ross Earthmoving

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established